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Appeals court allows child death suit against SRS worker

  • The Wichita Eagle
  • Published Wednesday, Dec. 19, 2012, at 6:38 p.m.

A federal appeals court has reinstated a lawsuit against a state social worker accused of willful inaction that led to the beating death of a 23-month-old Coffeyville girl.

The decision by the 10th Circuit U.S. Court of Appeals in Denver, filed Wednesday, reverses a ruling by a federal judge in Wichita, Monti Belot. Belot had thrown out the lawsuit against Linda Gillen, who had been a longtime social worker with the Kansas Department of Social and Rehabilitation Services. Gillen is no longer with SRS, but the state is defending her in court.

The nearly 3-year-old lawsuit, which seeks $750,000, has been brought by the estate of the girl, Brooklyn Coons, and by her maternal grandparents, Larry and Mary Crosetto. In August 2007, Brooklyn’s mother died of a sudden illness. At the time Brooklyn was beaten, she and her brother were living with her father and his girlfriend. The girlfriend, Melissa Wells, was convicted of murdering the 23-month-old girl. Brooklyn died from her injuries in January 2008.

The grandparents allege that Gillen held an old animosity toward them. They claim she refused to return phone calls from police following up on concerns about the grandchildren; refused to accept photos of injuries to the children; lied about being in the home where the children lived with their father and his girlfriend; and told the grandparents that the abuse “was not her issue, but one for law enforcement,” a court document says. Gillen claimed that abuse allegations against Wells were unsubstantiated, the lawsuit says.

The appeals court reversed Belot’s finding that Gillen was “entitled to qualified immunity because her overall conduct was not decidedly affirmative and did not shock the conscience,” according to the decision filed Wednesday. The document explained: “Qualified immunity protects government employees from suit, except those who are ‘plainly incompetent or those who knowingly violate the law.’ ”

The appeals court said the remaining issue in the lawsuit is “whether Ms. Gillen purposefully, maliciously, and intentionally failed to act,” placing the children in danger. “This is more than negligence or indifference; the evidence viewed in the light most favorable to the plaintiffs indicates a deliberate decision to ignore based on decade-old animosity toward the Crosetto family.”

The court said the lawsuit raises “numerous, specific indications of abuse and a deliberate decision not to remove the children or respond in any way to the extensive evidence of abuse.”

The court noted that after Brooklyn’s death, an official with the state Attorney General’s Office found that Gillen handled the case differently than others. The court, quoting an affidavit by the state official, said Gillen was “very hands off” with the Coons children.

Gillen could not be reached for comment Wednesday. Angela de Rocha, spokeswoman for the Kansas Department for Children and Families, said in an e-mail that Gillen ceased being an SRS employee on April 19, 2011. The spokeswoman said she couldn’t comment on whether Gillen’s leaving was by resignation, retirement or firing.

Randy Rathbun, attorney for the grandparents, said Wednesday of the appeals court decision: “Obviously, the Crosettos were overjoyed and look forward to having their day in court.”

The lawsuit will return to Belot’s court.

Reach Tim Potter at 316-268-6684 or tpotter@wichitaeagle.com

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